ITHA vs. Arlington to Federal Court

A $775,000 purse account dispute between the Illinois Thoroughbred Horsemen's Association (ITHA) and Arlington International Racecourse, LLC, that has simmered for over half a year got escalated to federal court Wednesday.

The ITHA is alleging a purse account underpayment in 2021 from now-defunct Arlington and a breach of contract triggered by Arlington's refusal to hand over the money once it became known the property was scheduled to be sold and that no racing would occur there in 2022.

Asked for comment via email late Wednesday afternoon, Arlington president Tony Petrillo wrote, “I haven't heard of this matter.” TDN then provided Petrillo with a copy of the lawsuit and gave him an hour to digest it, but did not receive a further reply prior to deadline for this story.

However, Churchill Downs Inc. (CDI), the Kentucky gaming corporation that owns Arlington, had stated in a March 23, 2022, letter to the ITHA that an overpayment actually occurred last racing season, and that any additional purse-account revenues that did accrue via simulcasting after the race meet ended in September don't have to be delivered to the horsemen just yet.

A chunk of this dispute hinges on how the two long-time adversarial entities define the word “track” as it appears in the contract they inked for the 2020-21 race meets.

“The term 'TRACK' as used in the Agreement refers to the entity Arlington Park Racecourse, LLC, not the physical racetrack itself,”  wrote Joseph Quinn, CDI's corporate counsel. “Arlington is actively pursuing additional horse racing opportunities in the State of Illinois. Until Arlington knows that it will not hold a future succeeding Race Meeting, it is not required to deliver the amounts held in the purse account to the ITHA.”

Quinn's letter to the ITHA then included this stunner: CDI wants the horsemen to pay $150,000 toward the purse account, “as required under the agreement”-even though Arlington missed the deadline for applying for 2022 dates at any Illinois location more than eight months ago.

The ITHA, in its Apr. 20 civil complaint filed in United States District Court (Northern District of Illinois, Eastern Division), disputed the points made by CDI in the Mar. 23 letter and framed the situation like this:

“The parties negotiated specific terms regarding any 'underpayment' of purses to address the possibility that Arlington would not be holding races at the Arlington Park racetrack in 2022….

“The contract provided that if Arlington underpaid purses in any amount during 2021, the underpayments would be 'carried forward and added to Purses for distribution at the next succeeding Race Meeting at TRACK.'”

“The contract further provided that 'if no such succeeding Race Meeting takes place, Arlington 'will deliver to ITHA the amount of the underpayment as soon as it is known that there will be no such Race Meeting…'”

Notwithstanding “multiple written requests” to deliver the money, the ITHA is alleging that Arlington and CDI are still refusing to pay.

“It has been known for many months that Arlington Park has sadly hosted its last horse race,” the complaint stated. “As has been widely reported and acknowledged, Arlington, LLC, and/or CDI has agreed to sell the Arlington Park property to the Chicago Bears.

“There will be no succeeding race meeting at Arlington Park in 2022. Indeed, there will be no such race meeting in 2022 at any venue operated by Arlington, LLC, in Illinois….

Arlington, LLC, has no plans to conduct a race meeting in Illinois at any time in the foreseeable future.”

With regard to CDI's “reminder” in the Quinn letter for the ITHA to pay the $150,000 to the purse account, the complaint stated that CDI has both the purpose of the payment and the financial calculations wrong.

According to the ITHA, the contract “provided that if certain conditions were met with respect to the purses”  the ITHA would “contribute $150,000 to purses for Illinois-restricted stakes races.”

CDI's Mar. 23 request instead asked for that money to be paid “to the purse account.”

“Arlington's own accounting of the purse account balance from 2021 (more than $775,000) already reflects a $150,000 reduction in the underpayment,” the complaint stated.

“In other words, if ITHA were to send Arlington, LLC, a check for $150,000 today, the result would be that the already-substantial underpayment of approximately $775,000 (money to which ITHA is legally entitled) would grow by $150,000 to approximately $925,000.

“By the time Arlington, LLC, requested that ITHA make a payment to the purse account, Arlington, LLC, was already in material breach of the parties' agreement,” the complaint stated.

With regard to CDI's assertion that it is searching for an alternate Illinois location at which to apply for a license to stage races, the ITHA's complaint stated this:

“While Arlington, LLC's, letter claims that it is 'actively pursuing additional horse racing opportunities in the State of Illinois,' Arlington, LLC, has never identified any such opportunities, even when pressed to do so by the Illinois Racing Board.”

The ITHA's suit seeks a declaration that Arlington has breached the contract, all allegedly outstanding purse amounts, plus damages in an amount to be established at trial.

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Illinois Racing Board Nixes Arlington’s OTB Licenses But Approves TwinSpires ADW

You win some, you lose some.

That's how it went for Churchill Downs Inc. (CDI) and its dormant track, Arlington Park, during Thursday's regularly scheduled meeting of the Illinois Racing Board when the 10 commissioners deadlocked on a motion to permit Arlington to continue to operate off-track betting faclities, effectively killing the measure. CDI won a second vote by a 9-1 margin permitting TwinSpires, the company's advance deposit wagering platform, to maintain its license and operate in the state in 2022.

The meeting was contentious at times, with Arlington's Tony Petrillo and Hawthorne's Tim Carey shouting over each other during discussions about ADW revenue.

Commissioner Alan Henry, a fierce critic of CDI over its decision to not race at Arlington in 2022 and sell the track property to the NFL's Chicago Bears to build a football stadium, referred to the closing as a “flagrant obscenity,” saying that, “It's now time for this board and this state to move on from Churchill Downs.”

This came after Chris Block, newly elected president of the Illinois Thoroughbred Horsemen's Association, said the move to close Arlington has put the state's Thoroughbred industry “on the brink of collapse.”

But the board apparently has a number of CDI loyalists who felt it was in the best interest of racing to permit Arlington Park to maintain its OTB network despite not operating a live race meetingin 2022  – in what the Illinois Thoroughbred Horsemen's Association said was contrary to law.

Petrillo told the IRB that CDI remained committed to live racing in Illinois, saying the company was continuing to search for a property to build a new track to replace Arlington. When pressed by the board, he couldn't offer any specifics. Two senior CDI officials, Bill Mudd and Brad Blackwell, joined the call, but they offered no specifics, either, saying they hoped to find a place to build a track and then get a casino license.

To several commissioners, that made no sense, inasmuch as CDI turned down an opportunity to add casino gambling to Arlington after enabling legislation was passed in 2019. Horsemen and CDI worked hand in hand for many years to get the legislation approved.

When it came time to vote on Arlington's OTBs, five commissioners were in favor and five against; thus, the motion did not pass. The yes votes came from Leslie Breuer, Marcus Davis, Lydia Gray, Charles MacKelvie and Leslye Sandberg. Voting against the Arlington OTB licenses were board chairman Daniel Beiser, Beth Doria, Alan Henry, Benjamin Reyes and John Stephan.

Hawthorne is expected to pick up the slack from the Arlington OTBs that will not reopen, although under current law it is one OTB short of the maximum it can operate. Hawthorne is expected to seek legislative help that will permit them to expand their network.

For an advance deposit wagering company to be licensed in Illinois, it must have a contract with a state racetrack and the consent of the representative horsemen's group.

TwinSpires had previously reached an agreement with Fanduel Sportsbook and Horse Racing, the downstate track formerly known as Fairmount Park. The Illinois Horsemen's Benevolent and Protective Association that represents horsemen at Fanduel/Fairmount withheld consent until just before Thursday's meeting. The board could have approved the license without consent, if the commissioners felt the horsemen were being unreasonable, but the agreement made that a moot point after the Illinois HBPA gave their consent.

However, there was one last chance for the IRB to block TwinSpires' operations in Illinois by denying the company an ADW license. After much debate, that license was approved by a 9-1 vote. Henry was the lone dissenter.

As commissioner Henry explained, the approval will hurt horsemen at Hawthorne because the bulk of purse revenue will remain at Fanduel/Fairmount although 75% of the ADW customers live in the Chicago area.

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View From The Eighth Pole: Petrillo Deserves Chutzpah Award For Gaslighting Of Illinois Racing Board

We may have to dust off the old Paulick Report Chutzpah Award in the wake of Arlington Park executive Tony Petrillo's gaslighting of the Illinois Racing Board.

Appearing via video before the regulatory agency during a regularly scheduled meeting on Thursday, Nov. 18. Petrillo lobbied to keep Arlington Park's diminishing number of OTBs operating in 2022 despite the decision by the suburban Chicago racetrack's parent company, Churchill Downs Inc., to end racing there and sell the property to the NFL's Chicago Bears for construction of a new football stadium.

Arlington Park ran its final race on Sept. 25 after deciding earlier not to seek racing dates in 2022, saying the property was being put up for sale. Four days after the 2021 meet ended, Churchill Downs announced a deal to sell Arlington Park to the Bears for $197.2 million. The company rejected a bid from a group led by former Arlington Park president Roy Arnold to purchase the property, continue racing and develop a portion of the land.

There were two agenda items related to Arlington and CDI continuing to profit off Thoroughbred racing through the continued operation of its Trackside OTB in a separate building on the south end of the Arlington Park property and five other OTBs in the state. CDI also wants its advance deposit wagering brand, TwinSpires, to keep operating in Illinois, though it must have a contract with both a racetrack and horsemen's organization and currently does not have an agreement with horsemen, either at Hawthorne and the Illinois Thoroughbred Horsemen's Association or FanDuel Fairmount Park and the Illinois Horsemen's Benevolent and Protective Association.

Attorneys for Hawthorne racetrack and the Illinois Thoroughbred Horsemen's Association argued that Arlington should not be eligible for what the racing law refers ti as “inter-track” wagering because Arlington is no longer an operating racetrack and is not licensed for 2022. Commissioner Alan Henry said the question comes down to legislative intent, the best long-term interests of the racing industry and common sense. Henry said Churchill wanting to profit off OTBs is like the farm that sells its prized Holstein to someone and then wants the profits from the milk it produces.

Counsel for the Illinois Racing Board advised the commissioners that, in his opinion, Arlington Park could be awarded the license under the law.

Hawthorne said it was willing to take over operations in some of the regions where Arlington currently has OTBs, though it is restricted to 16 OTB locations and already has 15 open.

The gaslighting began when Petrillo said Churchill Downs Inc. is committed to live racing in Illinois – less than two months after selling the state's signature racetrack for development. (In his next breath, Petrillo said racetracks can not be profitable on their own.)

“We maintain an interest in racing and pursuing other opportunities to continue live racing within the state,” Petrillo said. “At this time, we don't have any location that we could identify but we continually pursue this each day for another location.”

Petrillo started shedding what looked on my computer screen like crocodile tears.

“These (OTBs) are very important because they provide jobs, they're going to provide a number of jobs across each of these geographical areas to people to support their families. Especially in these economic times it's very important for these jobs to be maintained.”

Commissioner Beth Doria called Petrillo out for the audacious comment.

“Mr. Petrillo, I heard you reference the loss of jobs several times,” Doria said. “But I'm just wondering where that concern was when you actually closed the racetrack itself.”

Another commissioner asked Petrillo if he felt the closing of Arlington caused “dramatic damage” for the Illinois racing industry.

“Any business closing in any part of the industry has an impact that could be construed as negative,” Petrillo said in a comment that can only be construed as tone deaf by the thousands of lives affected by the closing of Arlington Park.

The Illinois Racing Board voted to delay a decision on Arlington Park's request until the Dec. 16 meeting. Let's hope the board does the right thing and denies the OTB licenses next month and allows Hawthorne to take them over. If CDI and Arlington opt to get back in racing with the construction of a new track, OTBs should be part of their operation. Until such time, they are no longer in the racing business in Illinois.

That's my view from the eighth pole.

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CDI Grilled by IRB About Arlington’s Control of ITWs

Exactly 50 days after executing a purchase-and-sale agreement that will see Arlington International Racecourse demolished to become the future site of a football stadium, the gaming corporation Churchill Downs, Inc. (CDI) came before the Illinois Racing Board (IRB) Thursday to request 2022 licensure to retain control over simulcasting at its inter-track wagering (ITW) locations even though it won't be hosting any live racing next year.

The IRB heard contentious pro-and-con testimony on the Arlington-related agenda items, but in the end essentially punted on the matter by voting 10-0 to “lay over” the decision-making process until its December meeting.
Four issues stood out during the extended debate Nov. 18:

Firstly, Arlington president Tony Petrillo is intent on spinning the ITW licensure as a “demonstration of the [corporation's] continued commitment to be involved in horse racing in the state” that will preserve jobs.

Secondly, Hawthorne Race Course president and general manager Tim Carey said that Hawthorne Race Course is “absolutely” interested in taking over the operation of the most lucrative of the simulcasting parlors should Arlington not be granted a license to run them. And IRB commissioners appeared in agreement that those locations will end up generating roughly the same amount of revenue if Hawthorne operates them instead of Arlington.

Thirdly, the Illinois Thoroughbred Horsemen's Association (ITHA) is against Arlington retaining control of the parlors, citing the fact that since Arlington doesn't hold a license as a track, it can't then be granted ITW privileges.

Finally–and perhaps most surprisingly–the IRB itself repeatedly questioned the motives of CDI after commissioners had remained largely mute on the devastating topic of the Arlington sale for the better part of the last year.

“I just have a concern, as a board member, in how we've been treated by Churchill Downs,” said IRB commissioner Marcus Davis, noting that CDI could have opted to work out a plan to sell its land while preserving racing at Arlington in the short term, thus allowing for a smoother transition to year-round, dual-breed racing at Hawthorne.

“I don't get the sense that I can trust what Churchill has to say when they do the things that they do [like closing Hollywood Park and Calder Race Course],” Davis said.

IRB commissioner Alan Henry went a step further, advocating against granting ITW licensure to CDI.

“I don't think it's in the best interest of the public or horse racing to have [CDI] operate these parlors,” Henry said. “This is the same company that shut down the most beautiful track in the country…and it was just thrown in the ash heap for an alleged higher purpose that doesn't make any sense to me. I don't know that we should be rewarding the company with parlors when they don't have a track to run at.”
Henry said that in recent years, CDI has “torched” IRB directives aimed at fostering and promoting the sport.

“What I see in these [ITW] requests seems an awful lot like the farmer who sells his prized Holstein, then expects to still get paid for some of the milk it produces,” Henry said.

Henry noted that Arlington closed two of its parlors in 2020, and is set to “offload” four of its least-profitable remaining ones over the next few weeks.

Petrillo kept reiterating that CDI still wants to be involved in racing in Illinois, although he was vague on specifics.

“Our commitment to racing in the state and the product is indicative of our pursuit of these licenses,” Petrillo said. “At this time, we don't have any locations that we could identify, but we continually pursue this each day for another location.”

Petrillo said that keeping the ITW locations under Arlington's control will generate only a relatively small amount of revenue for CDI itself–about $250,0000 to $300,000–but that horsemen would reap the benefits of purse money derived from ITW bets.

“These licenses overall will produce a significant amount of handle–$76 million in handle, and will see about $8 million in host fees and purses going directly to Hawthorne,” for 2022, Petrillo said.

“We feel it's important that the board take action on these licenses today, as 80 to 100 [ITW workers] would be sitting in suspense on whether they have jobs or not,” Petrillo said.

“It would cause a lot of unrest for the public as well,” Petrillo added–without explaining how that strife could ever top the industry-wide calamity CDI triggered by deep-sixing Arlington.

IRB commissioner Beth Doria politely but firmly upbraided Petrillo by saying, “I've heard you reference the loss of jobs multiple times in your presentation today. And I'm just wondering where that concern was when you actually closed the racetrack itself.”
Davis underscored that it won't make much of a fiscal difference which licensee operates the ITWs.

“There may be a small [operational] hiccup. But if Hawthorne took over the OTBs, that money will still flow to the state; it will still flow to the horsemen. But at least we know that [Hawthorne has] a commitment, because they've committed to racing year-round. I don't see anything like that ever coming from Churchill Downs,” Davis said.

Despite some of the commissioners' misgivings about licensing Arlington to run the ITWs, the now-defunct track does have some relative precedents on its side.

Petrillo pointed out that when Arlington was rebuilding from its fire in the 1980s and was later emerging from a separate closure in the 1990s, the IRB let it keep operating ITWs without live racing.

And John Gay, the attorney for the IRB, said when asked during Thursday's meeting that “it is my opinion that the plain language of the [state] statute allows the board to issue these licenses if it so chooses.”

Henry disagreed.

“I am well aware that [CDI] can apply for these licenses because they raced for 60 days in 2021,” Henry said. “And yes, they may have operating control of a racetrack because they control the property. But they turned down their right to request 2022 racing dates, and they do not have a license to conduct pari-mutuel racing in 2022, nor have they requested one.

“I know it's a matter of legal dispute, and there are what I consider dissimilar precedents that allowed previous [ITW] approvals,” Henry said. “But common sense tells me that ITW licenses should only be granted to viable track operators that actually want to engage in horse racing, and that disqualifies these applications.”

When asked by Davis why CDI should be trusted to be involved with Thoroughbred racing in Illinois based on the Hollywood and Calder closures, Petrillo answered by saying that with regard to Hollywood, the current CDI management team was not involved in that decision. He didn't address Calder, which did close under the corporation's current regime.

As for the decision to sell Arlington, he said it was a “very heart-aching decision” for Bill Carstanjen, CDI's chief executive officer, to make.

When Petrillo was asked by Henry if he thought CDI's decision to rid itself of Arlington represented “fairly dramatic damage to the Illinois racing industry in the near term,” Petrillo admitted that Arlington's closure “could be construed as negative.”

But, Petrillo added, shifting into spin mode, “the one racetrack [Hawthorne] that will be remaining to conduct Thoroughbred racing will also see a significant amount of revenue being sent to their facility.”

Henry asked Petrillo if he had any regrets about CDI intentionally missing a deadline in 2019 to build a racino at Arlington after more than a decade of working with the ITHA to get the Illinois Gaming Act passed.

“I don't think that my personal feelings or my personal opinion is of any relevance in this matter,” Petrillo replied.
Henry said that as racinos at Hawthorne and Fairmount Park do open in the state, “The industry in a post-CDI world, in my opinion, will emerge on stronger and more reliable footing. Further, I see no signs that CDI's commitment to racing is going to improve.”

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